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The Committee
against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 24 November 2000,
Having concluded its consideration of communication No. 122/1998, submitted
to the Committee against Torture under article 22 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Having taken into account all information made available by the author of
the communication and the State party,
Adopts the following decision:
1.1 The author of the communication is Mr. Mizanur Rahman Pir, a citizen of
Bangladesh born in 1969 and currently residing in Switzerland, where he
applied for asylum on 29 August 1997. His application having been turned
down, he maintains that his forcible repatriation to Bangladesh would
constitute a violation by Switzerland of article 3 of the Convention against
Torture. He is represented by counsel.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee transmitted the communication to the State party on 27 November
1998. At the same time, the State party was requested, pursuant to rule 108,
paragraph 9, of the Committee's rules of procedure, not to expel the author
to Bangladesh while his communication was under consideration by the
Committee. In a submission dated 22 January 1999, the State party informed
the Committee that steps had been taken to ensure that the author was not
returned to Bangladesh while his case was pending before the Committee.
The Facts as Submitted by the Author
2.1 The author claims to be a member of the Bangladesh National Party (BNP),
the main opposition political party. He was president of the BNP Union from
1994 to 1997 and vice-president of a regional BNP youth organization (the
Yuba Dubal) as of 1997.
2.2 On 13 January 1997, the author and his brother were apparently attacked
by members of the Awami League (AL), the political party in power. The
author managed to flee, but his brother was seriously injured. A complaint
was lodged with the police. The police arrested one of the suspected
attackers, but quickly released him without charge. Members of the arrested
person's family also exerted pressure on the author, who in the end withdrew
his complaint.
2.3 After that incident, the author was forced to leave his home during the
day. In the night of 13-14 June 1997, an AL member who was a driver for one
of the organization's leaders, Mr. Shafijrahman, was killed. The attack's
intended victim was apparently Mr. Shafijrahman himself, who was prompted to
lodge a complaint against the author and four other BNP sympathizers. In
that regard, the author points out that, in Bangladesh, it is common
practice for BNP members to have complaints lodged against them and to be
charged on non-existent grounds; this, in fact, constituted an abuse of
power by AL members to intimidate and eliminate political opponents. After
the complaint was lodged, the author decided to leave his country
immediately.
2.4 The author arrived in Switzerland on 26 August 1997 and applied for
asylum on 29 August 1997. His application was turned down on 7 January 1998,
essentially on the grounds that the attack against him and his brother had
not been carried out by the State. The author appealed the ruling to the
Swiss appeals court dealing with asylum matters. The appeal was rejected on
15 April 1998.
Merits of the Complaint
3.1 The author states that Bangladesh is a country with gross, flagrant and
mass human rights violations, within the meaning of article 3, paragraph 2,
of the Convention. Given that a complaint had been lodged against him, there
is serious reason to believe that he risks being subjected to torture should
he be returned to Bangladesh. Torture and ill-treatment are commonplace in
Bangladesh, the prisons are overcrowded and prison sanitary conditions are
inhuman. The author claims that, in December 1997 alone, at least four
people were killed while remanded in custody.
3.2 The author also recalls that the vice-president of Yuba Dubal had been
the target of intimidation on the part of Awami League members more than
once. He considers that the charge of murder against him is part and parcel
of the climate of oppression prevailing in his country and that the aim is
to eliminate him personally as an opponent. He also considers that, if he
had been arrested, he would probably be in prison and the victim of abusive
treatment and torture. Since the judiciary is controlled by those in power,
it is unlikely he would be acquitted and he therefore ran the risk of life
imprisonment or the death penalty.
Observations by the State Party on the Admissibility and Merits of the
Communication
4.1 The State party did not contest the admissibility of the communication
and, in a letter dated 18 June 1999, made observations on its merits.
4.2 The State party points out that there remains some doubt as to the
author's true identity. Those doubts stem not only from the fact that the
author's name is spelled in two different ways in the translation of the
documents he produced, but also from the absence of the certificate that the
author undertook to provide. It is therefore difficult to be certain that
the documents submitted to the Swiss authorities refer to the author.
4.3 The State party also wishes to inform the Committee about the
contradictions observed in the course of the two hearings during the asylum
procedure. At the first hearing, the author stated that the person who had
been killed was called Babu, but, at another hearing, he said that the
person was called Abul Kalama and that he knew of no other name for that
person. The State party nevertheless emphasizes that that contradiction
alone is not a sufficient basis for concluding that the communication is
unfounded.
4.4 The State party considers, contrary to the author, that the Bangladeshi
police took a number of measures to prosecute the perpetrators of the attack
on the author and his brother. In addition, the author and his brother could
have taken the matter to a higher court. Lastly, the State party points out
that, after the incident, the author continued to live at home, which would
seem to prove that he no longer stood in great fear of his political
enemies.
4.5 Although it acknowledges the existence in Bangladesh of politically
motivated complaints (i.e. complaints that are not based on facts, but whose
sole aim is to cause trouble for a political adversary), the State party
underlines that the administrative inquiries that follow on the complaints
are legitimate and therefore in no way reflect political motivation on the
part of the State. The State party also points out that the Special Powers
Act, which allows for unlimited detention without trial, is not applicable
in the author's case and that there is therefore little likelihood that the
author will be imprisoned for an indefinite time.
4.6 With regard to the author's allegations that the courts and tribunals of
Bangladesh are corrupt and controlled by the Government, the State party
considers that, while that may be the case for lower courts, higher courts
are independent and impartial. There is therefore no evidence that the
author would not be granted the benefit of an impartial and fair trial.
4.7 According to the State party, neither the risk of being tried by a
Bangladeshi court nor the fact that he might be imprisoned, and could
therefore be subject to ill-treatment, are reasons to prevent the author's
expulsion on the basis of article 3 of the Convention.
Author's Comments
5.1 The author comments on the State party's observations on the merits of
the communication in a letter dated 10 August 1999.
5.2 The author points out that the State party recognizes that, in
Bangladesh, extremists from certain parties lodge complaints against
opponents for purely political reasons and that certain lower courts are
corrupt and not independent. The State party therefore does not dispute the
fact that the author would probably be imprisoned on arrival in Bangladesh,
that he risks being ill-treated and tortured while being held, that he would
probably be convicted by a lower court and that he would have to wait for a
higher court to consider his case to obtain what might be a fair trial.
Issues and Proceedings Before the Committee
6.1 Before considering any of the allegations in a communication, the
Committee against Torture must decide whether or not the communication is
admissible under article 22 of the Convention. It has ascertained, as it is
required to do in accordance with article 22, paragraph 5 (a), of the
Convention, that the same matter has not been and is not being examined
under another procedure of international investigation or settlement. It
also notes that all domestic remedies have been exhausted and that the State
party has not contested the admissibility of the communication. It therefore
considers that the communication is admissible. As both the State party and
the author have provided observations on the merits of the communication,
the Committee proceeds with the consideration of those merits.
6.2 The issue before the Committee is whether the forced return of the
author to Bangladesh would violate the obligation of the State party under
article 3 of the Convention not to expel or return a person to another State
where there are substantial grounds for believing that he would be in danger
of being subjected to torture.
6.3 The Committee must decide, pursuant to article 3, paragraph 1, whether
there are substantial grounds for believing that the author would be in
danger of being subjected to torture upon return to Bangladesh. In reaching
this decision, the Committee must take into account all relevant
considerations, pursuant to article 3, paragraph 2, including the existence
of a consistent pattern of gross, flagrant or mass violations of human
rights. The aim of the determination, however, is to establish whether the
individual concerned would be personally at risk of being subjected to
torture in the country to which he or she would return. The existence of a
consistent pattern of gross, flagrant or mass violations of human rights in
a country does not as such constitute a sufficient ground for determining
that a particular person would be in danger of being subjected to torture
upon his or her return to the country. There must be other grounds
indicating that the individual concerned would be personally at risk.
However, the absence of a consistent pattern of gross violations of human
rights does not mean that a person might not be subjected to torture in his
or her specific circumstances.
6.4 The Committee recalls its general comment on the implementation of
article 3, which reads:
"Bearing in mind that the State party and the Committee are obliged to
assess whether there are substantial grounds for believing that the author
would be in danger of being subjected to torture were he/she to be expelled,
returned or extradited, the risk of torture must be assessed on grounds that
go beyond mere theory or suspicion. However, the risk does not have to meet
the test of being highly probable" (A/53/44, annex IX, para. 6).
6.5 The Committee notes the arguments advanced by the author and by the
State party regarding the alleged risk of the author's being tortured and
considers that the latter has not produced enough evidence to show that he
would run a personal real and foreseeable risk of being tortured in
Bangladesh.
6.6 The Committee therefore finds that the information submitted to it does
not demonstrate that there are substantial grounds for believing that the
author would be in danger of being personally tortured if returned to
Bangladesh.
6.7 Accordingly, the Committee against Torture, acting under article 22,
paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, concludes that the decision of the State
party to return the author to Bangladesh does not constitute a breach of
article 3 of the Convention.
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